Is Inequality Indefensible?

Mises Review 9, No. 3 (Fall 2003)

Michael Otsuka endeavors to combine two fundamental principles of political philosophy, usually considered polar opposites. In my view, his ingenious attempt does not succeed; but his failure has much to teach us.

Otsuka has been struck by the force of the self-ownership axiom. Is it not obvious, once one thinks about it, that each person owns himself, in the sense that he has the right of disposition over his body and labor? The fact that you need a kidney in order to survive should not give you a legally enforceable right to take one of mine, even though I can get by with only one.

The example just given hardly seems controversial, but does it not have radical implications for the contemporary welfare state? If you have to pay taxes to support the poor and disabled, then your right of self-ownership has been violated. As Robert Nozick, following Herbert Spencer, pointed out, taxation to help the unfortunate is a species of forced labor. Slavery remains slavery even if the slave owners are physically disabled. If, then, you acknowledge self-ownership, do you not also have to reject the welfare state and embrace libertarianism?

Otsuka has a surprising response. He thinks that he can be a libertarian without rejecting transfers of wealth to the poor and disabled. His "left libertarianism," as he terms it, combines robust rights of self-ownership with what amounts in effect to compulsory welfare transfers.

Before we examine Otsuka’s attempt to "square the circle," a preliminary question confronts us. Why does Otsuka wish to promote this seemingly odd amalgam? Though he finds the case for self-ownership compelling, he is also attracted to another line of thought. People have vastly different abilities, temperaments, and assets; as a result, in a free-market society some are able to achieve much higher levels of welfare than others.

But is not this grossly unfair? You do not morally deserve your abilities. It is a mere matter of luck, e.g., that someone is born blind and is as a result probably greatly restricted in the level of happiness he can attain, relative to sighted people. People ought to enjoy equal opportunities for welfare, regardless of their natural starting points: society has a duty to "correct for luck."1

I must underscore the radicalism of Otsuka’s position. He holds not only that the poor should be helped in some fashion, but that no one is entitled to a greater opportunity for welfare than, say, a blind quadriplegic with a morose disposition. Sufficient property must be transferred to this unfortunate so that he is, so far as we can make it, equally happy with those more fortunately endowed.

But how can this idea possibly be combined with self-ownership, so long as a single person who is not disabled refuses to labor on behalf of the unfortunate? Otsuka finds the key to the mystery by developing a line of thought advanced by G.A. Cohen, by whom he has been greatly influenced. Like our author, Cohen felt the force of the self-ownership principle; but he denied that self-ownership entails standard libertarianism.

Libertarians assume that people, because they are self-owners, can acquire unowned property by "mixing their labor" with it; but does not this claim involve additional assumptions? Who says that property is initially unowned? Even if it is, can people acquire unlimited amounts of property without restriction?

Though Cohen located a gap between self-ownership and libertarian property rights, he did not defend a combination of self-ownership with egalitarianism. Quite the contrary, he maintained that egalitarianism, consistently applied, would stultify self-ownership. It is here that Otsuka takes issue with his mentor.

Otsuka wisely accepts the evident fact that property starts out unowned; his egalitarian move arrives with his answer to the second question. Robert Nozick famously held that initial acquisition of property is subject to a proviso: "You may acquire previously unowned land (and its fruits) if and only if you make nobody else worse off than she would have been in a state of nature in which no land is privately held" (p. 23).

This proviso, Otsuka rightly holds, is very easy to fulfill, since almost everyone is better off under a system of private property than under a regime of common ownership. But what if one makes the proviso more exigent in its requirements? He proposes that property can be justly acquired only if everyone in society, most definitely including the disabled, winds up with an equal opportunity for welfare.

If Otsuka is right, he has achieved what appeared impossible: he has shown that full self-ownership is compatible with radical egalitarianism. If someone protests that it is entirely up to him, as a self-owner, whether he wishes to donate the fruits of his labor to the disabled, and that he chooses not to do so, Otsuka stands ready with his left libertarian reply.

"Your labor is your own," he will acknowledge. "But so much property must be transferred to the poor and disabled that if you want to acquire anything more than bare subsistence for yourself, you will have to labor for these unfortunates. Since they initially hold most of the property, beyond what is required for bare subsistence, you must work for them if you want property of your own. What could be more voluntary?"

It transpires that even if you pay the appropriate ransom to the disabled in order to obtain property, you still cannot bequeath your property to your heirs. To do so would be impermissibly to violate the equal chance at welfare of members of future generations. And you cannot even pass on the improvements your own labor adds to the property you acquire: "Since individuals possess only a lifetime leasehold on worldly resources, they have nothing more than a lifetime leasehold on whatever worldly resources they improve" (p. 38).

But those who do not share Otsuka’s commitment to absolute equality will think that his system leaves room for only an etiolated version of self-ownership. Imagine a social system in which everyone owns himself, but I hold a legal monopoly of all property beyond what people require to eke out a living. Would not I be in a position approaching absolute command? We would hardly have here a free society; and I do not think the matter much altered if it turned out that I was the only disabled person in the society.

Otsuka’s reconciliation almost totally eviscerates the worth of self-ownership for those not so fortunate as to be poor in natural assets or disabled. We may grant his project a Pickwickian "success"; but why should we adopt it, rather than standard libertarianism?

Oddly enough, Otsuka deploys against standard libertarianism an example similar to the one that I have advanced against his own approach. Does not Nozick’s proviso allow a single person to control all the property in a society? He may do so provided everyone else is slightly better off than he would have been in a society without any private property. "Nozick’s version of the Lockean proviso is too weak, since it allows a single individual in a state of nature to engage in an enriching acquisition of all the land there is if she compensates all others by hiring them and paying them a wage that ensures they end up no worse off than they would have been if they had continued to live the meager hand-to-mouth existence of hunters and gatherers on non-private land" (p. 23; Otsuka credits this counterexample to Cohen).

This objection rests on a complete misunderstanding of how libertarians believe that property is initially acquired. Like Cohen before him, Otsuka reduces the libertarian principle of initial acquisition to the proviso. In point of fact, the proviso is only a modification (in the Rothbardian view an unnecessary one) to the principle. You cannot acquire vast amounts of property just by your say-so, if you follow the principle; you must combine your labor in the appropriate way with unowned land in order to acquire it. If this is taken into account, it seems next-to-impossible that the nightmare Otsuka has conjured up could in practice arise.

Otsuka eliminates the limits on property acquisition contained in the libertarian principle; and, having done so, triumphantly proclaims that libertarians recognize practically no limits to property acquisition. Otsuka’s mistake is readily apparent if one returns to his version of the so-called Nozickian proviso, quoted above. He makes it a sufficient condition for acquiring unowned property that you leave no one worse off, but he offers no evidence that Nozick or any other prominent libertarian holds this bizarre position. Otsuka has his own version of a Lockean principle, in which the "mere staking of a claim" suffices for acquisition, subject to the proviso he deems correct; but he has no right to attribute a similar view to his libertarian opponents.

Thus, even if Otsuka is right that Nozick’s proviso does not eliminate the bad outcome Cohen has imagined, the point has little significance. Since the proviso is only part of the principle of property acquisition, why does it matter if it taken by itself leads to bad results?

But let us put this to one side. Suppose that Otsuka and Cohen were correct that Nozick’s proviso forms the sum and substance of his principle of property acquisition. It leads to the bad result the critics have called to our attention: under it, someone could obtain all the property in society and maintain everyone else in perpetual penury.

What follows? Presumably, the proviso should be modified so that it no longer leads to this dire consequence. It hardly follows that it should be replaced by Otsuka’s egalitarian acquisition principle.

An analogy will clarify what is at issue. A famous philosophical example, first I think devised by Hastings Rashdall, asks us to consider someone dying of thirst in the desert. Someone who owns the only available water in the vicinity offers him a cupful, if he agrees to surrender all his assets in return. It seems apparent that the bargain is unfair; the owner of the water is wrongfully taking advantage of the situation in which his customer finds himself. (I do not of course say that this transaction should be legally prohibited.) It does not follow, because of the unfairness of this bargain, that no one making an exchange should be able to get substantially more than the market price for what he offers. To think so is to commit exactly the same error as Otsuka. In both cases, there is a jump from one example to an overly broad conclusion.

I am always grateful to an author who illustrates exactly the fallacy I am trying to pin on him. Otsuka argues, in parallel fashion to what has already been presented, that a Lockean principle of acquisition permits one generation politically to enslave its successors. If so, the principle must be modified; but once again, Otsuka makes his characteristic jump. "I have argued that this inegalitarianism in Locke [i.e., the situation in which a generation enslaves its successors] is indefensible. It is inconsistent with a proper understanding of the conditions under which individuals may justifiably come to own previously unowned worldly resources. Contrary to Locke’s own understanding of these conditions, they call for an egalitarian pattern of ownership of land . . . among the members of each generation" (p. 98).

Basing himself on a misunderstanding of standard libertarian views, Otsuka frightens us with a vision of a single person or small group who dominates society by owning all the land that it contains. Against this menace, he proposes to subject everyone to a dictatorship of the poor and disabled, by giving them control of virtually all property. Such is left libertarianism.

1The arguments that Otsuka here relies on have been subjected to withering assault in S.L. Hurley, Justice, Luck, and Knowledge (Harvard University Press, 2003). See my review in The Mises Review, Summer 2003.